Monday, June 17, 2013

The Cert Petition

Now
that Supreme Court has at least forced Durham to respond, I thought it
might be worthwhile to analyze the falsely accused players’ petition, written
by Williams & Connolly attorney Kannon Shanmugam. A couple of general
points:

(1) The petition doesn’t even bother to respond to JudgeGregory’s race-based opinion in the 4th Circuit—perhaps presuming,
correctly, that any Justice who would find even one word of Gregory’s rant
persuasive would never vote to grant cert anyway.

(2) The petition frames the question for the Court in a narrow
manner: “Whether police officers who conspire with a prosecutor to fabricate
evidence for subsequent use are immune from liability as a matter of law by
virtue of the conspiring prosecutor’s decision to use the evidence.” This framing
accomplishes two purposes: first, to preemptively meet at least some of the
concerns expressed by Judge Wilkinson in the 4th Circuit; and
second, to more clearly distinguish the Evans
case from the McFadyen case,
which might also still be appealed to the Supreme Court.

The petition opens by pointing to a 2009 case, Pottawamie
County, which revolved around the question of whether a prosecutor had absolute immunity if he
conspired with police to procure false evidence, and then used that evidence at
trial. The case was ultimately settled before the Supreme Court decided it, but
the cert petition notes that the Solicitor General and (at oral argument) five
justices argued that the police in
such a circumstance could be held
civilly liable. On this point, of course, the 4th Circuit disagreed;
and since Pottawamie County was
settled before resolution, these sentiments didn’t form a clear precedent.

The petition’s description of the lacrosse case facts pulls
no punches. Noting that although Mangum “provided wildly inconsistent and patently implausible statements
concerning the circumstances of the alleged rape to Durham police officers and
to personnel at the Duke Medical Center,” Durham authorities elected to turn
the case over to Sgt. Gottlieb, “an officer with a known history of malicious
prosecution, false arrest, excessive use of force, fabrication of evidence, and
filing of false police reports directed against students at Duke University.” (Keep
in mind that news of Gottlieb’s past was initially broken not by defense
attorneys but by the N&O and
then in greater detail by the Chronicle.)
Gottlieb and Himan, in turn, were instructed to take orders from Mike Nifong,
who despite acknowledging that the lack of evidence left the trio “fucked” made
dozens of inflammatory statements to the media. Those “false statements
inflamed the Durham community” to such an extent that on “March 29, Durham police
supervisors . . . ordered them to expedite the identifications and arrests of
Duke lacrosse players.” Misconduct continued through the rigged photo array to
the meeting with Dr. Meehan, and directly led to the indictments of the falsely
accused players.

But the
misconduct did not end when Nifong
achieved his twin goals: indictments, coupled with his successful nomination.

In
a clever and important point, the petition notes that Nifong, Gottlieb, and
Himan continued their wayward behavior—whether overseeing the arrest of cab
driver Moezeldin Elmostafa, or through Gottlieb’s production of an “after-the-fact
‘report’ of his purported activities in the investigation.” Even by the 4th
Circuit’s claim that indictments broke a chain of misconduct, this behavior
occurred after indictments. As the
petition notes, the 4th Circuit opinion did not explain how these
examples of post-indictment misconduct were shielded by “an independent
intervening act—i.e., (p)rosecutor Nifong’s decision to
seek the indictments,” between the arrests on false causes and the untoward
pre-indictment behavior of Gottlieb and Himan. The 4th Circuit
nonetheless dismissed the federal civil rights claims against the duo, which in
turn provided grounds for the dismissal of the suit against the city of Durham.

The petition
invites the Court to determine that the 4th Circuit erred on any of
several different grounds. First, several courts of
appeals have taken much different approaches than did the prosecution-friendly
4th Circuit panel on what sort of intervening conduct can shield
police officers, and the city that employs them, from a federal civil rights
suit. The 2nd and 6th Circuits, for instance, “have held
that police officers may be liable for the ‘natural consequence’ or ‘reasonably
foreseeable result’ of their investigative misconduct, despite a prosecutor’s
subsequent action that contributes to the injury.” The 9th Circuit
wasn’t quite as broad, but did render an opinion that would seem to allow suits
for clear cases of police misconduct leading to indictments. And while, the
petition asserts, the 5th, 7th, and 11th Circuits
have adopted standards that an intervening indictment “breaks the causal chain
absent evidence that the officers misled or pressured the prosecutor,” their
specific guidelines would not have shielded Gottlieb and Himan.

The petition
also explains that the breadth of the 4th Circuit’s opinion “implicitly
took sides in another Circuit conflict, on an issue that stands as a logical
antecedent to the causation issue: . . . whether the fabrication of evidence at
the investigation stage, standing alone, gives rise to a constitutional
violation.” The 1st and 8th Circuits have said it does;
the 2nd Circuit said it does not. Obviously the 4th
Circuit panel agreed with the 2nd Circuit.

Finally,
and in perhaps the document’s most interesting section, the petition forcefully
takes on Judge Wilkinson’s absurd arguments that allowing the case to go
forward would initiate a floor of lawsuits from other figures, or that somehow
we should see Durham police employees as victimized figures in the process. The
petition argues that Supreme Court holdings dating back nearly 80 years have
established that “prosecutorial action undertaken as part of a conspiracy to
fabricate evidence with investigating officers does not absolve the officers of
liability for their improper investigative acts in furtherance of the
conspiracy.”

And yet, “in
reaching a contrary decision, the Fourth Circuit heavily relied on the concern
that recognizing liability in the circumstances presented here would open the floodgates
to similar claims that officers conspired with prosecutors ‘render(ing) the
officers’ qualified immunity from suit effectively lost and mak(ing) discovery
the rule, rather than the exception.”

This fear, the petition correctly notes,
is absurd. First of all, “one would hope that there are few, if any, cases in
the pipeline even remotely similar to this one.” Second, judges already have
more than sufficient tools to toss out weak or implausible cases under relevant
Supreme Court precedent. Durham, of course, tried and failed at that task—an indication
of just how strong the plaintiffs’ case is on a factual basis. Finally, and
contrary to Judge Wilkinson’s concerns, the petition observes that the Supreme
Court “has consistently declined the invitation to insulate officials entirely
from liability in the face of similar ‘floodgates’ arguments.”

As I’ve
noted previously, from a factual standpoint, the case made in the petition is
extremely strong. Indeed, in light of the 4th Circuit’s ruling, the
standard in Maryland, North and South Carolina, and Virginia and West Virginia
is that (to
quote Judge Beaty) “no provision of the Constitution has been
violated, and that no redressable claim can be stated, when government
officials intentionally fabricate evidence to frame innocent citizens, even if
the evidence is used to indict and arrest those citizens without probable
cause.”

Will four
justices be willing to evaluate the case individually, on its own merits—in a
manner that Judge Wilkinson in particular did not?

5 comments:

The case is probably floundered on the possibility that Duke themselves uses that tactic frequently to frame and treat their patients, students, faculty, and citizens of the world, and as threat to those who do not open their contributory wallets big nuff to their out standing liking - or judge in their bottom line political favor. Par for the course.

If the court does not lean towards protecting defendants, than they will probably end up with anarchy in the streets ... wait - we are talking about duke durham in wonderland - helps to understand the bigger picture of durham duke wonderland - hopefully the eyes of those deciding anarchy or equal justice and constitutional rights for all will be open to the bigger picture of what durham duke will become (is) if there is not a decision for equal protection and a fair and just legal system for all.

Duke wanted things the way they happened - and the way they will happen.

What was in the settlement agreement with duke that pertains to the same issue?

Blog Awards

About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

Book

Comments Policy

(1) Comments are moderated, but with the lightest of touches, to exclude only off-topic comments or obviously racist or similar remarks.

(2) My clearing a comment implies neither that I agree nor that I disagree with the comment. My opinion is expressed in my words and my words only. Since this blog has more than 1500 posts, and since I at least occasionally comment myself, the blog provides more than enough material for readers to discern my opinions.

(3) If a reader finds an offensive comment, I urge the reader to e-mail me; if the comment is offensive, I will gladly delete it.

(4) Commenters who either misrepresent their identity or who engage in obvious troll behavior will not have their comments cleared. Troll-like behavior includes, but is not limited to: repeatedly linking to off-topic sites; repeatedly asking questions that already have been answered; offering unsubstantiated remarks whose sole purpose appears to be inflaming other commenters.

"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review